Status without rights: African Americans and the tangled history of law and governance in the nineteenth-century U.S. South

American Historical Review

Volumn 112, Issue 2, 2007, Pages 365-393

  Edwards, Laura F ^a  

^a DUKE UNIVERSITY   (United States)

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EID: 34250004322     PISSN: 00028762     EISSN: None     Source Type: Journal    
DOI: 10.1086/ahr.112.2.365     Document Type: Review

References (231)

1. African Americans' use of law - at the local, state, and federal levels - is a common element in the literature on the Civil War and Reconstruction. The Cambridge University Press series "Freedom: A Documentary History of Emancipation, 1861-1867" emphasizes African Americans' involvement with various government institutions and legal forums at the federal, state, and local levels; see, for instance, Ira Berlin, Joseph P. Reidy, and Leslie S. Rowland, eds., The Black Military Experience (New York, 1982);
2. Ira Berlin, Barbara J. Fields, Thavolia Glymph, Joseph P. Reidy, and Leslie S. Rowland, eds., The Destruction of Slavery (New York, 1985);
3. and see Ira Berlin, Stephen F. Miller, and Leslie S. Rowland, "Afro-American Families in the Transition from Slavery to Freedom," Radical History Review 42 (1988): 89-121.
4. Subsequent scholarship also has relied extensively on legal materials, produced at various levels of government; see, for instance, Nancy D. Bercaw, Gendered Freedoms: Race, Rights, and the Politics of Household in the Delta, 1861-1875 (Gainesville, Fla., 2003);
5. Laura F. Edwards, Gendered Strife and Confusion: The Political Culture of Reconstruction (Urbana, 111., 1997);
6. Barbara J. Fields, Slavery and Freedom on the Middle Ground: Maryland during the Nineteenth Century (New Haven, Conn., 1985);
7. Noralee Frankel, Freedom's Women: Black Women and Families in Civil War Era Mississippi (Bloomington, Ind., 1999);
8. Dylan Penningroth, The Claims of Kinfolk: African American Property and Community in the Nineteenth-Century South (Chapel Hill, N.C., 2003);
9. Hannah Rosen, "'Not That Sort of Women': Race, Gender, and Sexual Violence during the Memphis Riot of 1866," in Martha Hodes, ed., Sex, Love, Race: Crossing Boundaries in North American History (New York, 1999), 267-293;
10. John C. Rodrigue, Reconstruction in the Cane Fields: From Slavery to Free Labor in Louisiana's Sugar Parishes, 1862-1880 (Baton Rouge, La., 2001);
11. Julie Saville, The Work of Reconstruction: From Slave to Wage Laborer in South Carolina, 1860-1870 (New York, 1994);
12. Diane Miller Sommerville, Rape and Race in the Nineteenth-Century South (Chapel Hill, N.C., 2004), 147-175;
13. Leslie A. Schwalm, A Hard Fight for We: Women's Transition from Slavery to Freedom in South Carolina (Urbana, 111., 1997), 147-268;
14. Christopher Waldrep, "Substituting Law for the Lash: Emancipation and Legal Formalism in a Mississippi County Court," Journal of American History 82 (March 1996): 1425-1451.
15. Recent work has rooted African Americans' post-emancipation activism in the slave period, emphasizing both slaves' distinct cultural values and their engagement in the broad cultural and political currents in the antebellum U.S. more generally. See, in particular, Steven Hahn, A Nation under Our Feet: Black Political Struggles in the Rural South from Slavery to the Great Migration (Cambridge, Mass., 2003).
16. Also see Stephanie M. H. Camp, Enslaved Women and the Geography of Everyday Resistance in the Plantation South, 1830-1865 (Chapel Hill, N.C., 2004);
17. Penningroth, The Claims of Kinfolk;
18. William A. Link, Roots of Secession: Slavery and Politics in Antebellum Virginia (Chapel Hill, N.C., 2003);
19. Joseph P. Reidy, From Slavery to Agrarian Capitalism in the Cotton Plantation South: Central Georgia, 1800-1880 (Chapel Hill, N.C., 1992);
20. Heather Williams, Self-Taught: African American Education in Slavery and Freedom (Chapel Hill, N.C., 2005).
21. Feminist scholarship has focused on the gendered nature of citizenship within emerging, modern nation-states and the resulting difficulties in extending individual rights not only to women, but to others on the social margins as well. See, in particular, Carole Pateman, The Sexual Contract (Stanford, Calif., 1988).
22. Feminist historians of the United States have taken up these insights, although they differ in their assessments of the possibilities for women of liberal conceptions of citizenship: Nancy F. Cott, Public Vows: A History of Marriage and the Nation (Cambridge, Mass., 2000);
23. Nancy Isenberg, Sex and Citizenship in Antebellum America (Chapel Hill, N.C., 1998);
24. Linda K. Kerber, No Constitutional Right to Be Ladies: Women and the Obligations of Citizenship (New York, 1998);
25. Alice Kessler-Harris, In Pursuit of Equity: Women, Men, and the Quest for Economic Citizenship in 20th-century America (New York, 2001). The gendered critique of rights is particularly pronounced in the context of the post-emancipation South;
26. see Bercaw, Gendered Freedoms;
27. Jane Dailey, Before Jim Crow: The Politics of Race in Postemancipation Virginia (Chapel Hill, N.C., 2000);
28. Amy Dru Stanley, From Bondage to Contract: Wage Labor, Marriage, and the Market in the Age of Slave Emancipation (New York, 1998).
29. This article explores state formation in the post-Revolutionary period, as a process by which the concept of nations - and states - needs to be created and then naturalized. See Benedict Anderson, Imagined Communities: Reflections on the Origins and Spread of Nationalism (London, 1983);
30. Etienne Balibar, "The Nation Form: History and Ideology," in Etienne Balibar and Immanuel Wallerstein, Race, Nation, Class: Ambiguous Identities (London, 1991), 86-106. The analysis also draws on the insights of James Vernon and other scholars of nineteenth-century British political history, who focus on reconstructing those processes that were later obscured, particularly the importance of local governance, informal political arenas, and decentralized conceptions of law, all of which were later delegitimized in a process of nation building that centralized governing authority.
31. See, for instance, Vernon, Politics and the People: A Study in English Political Culture, c. 1815-1867 (Cambridge, 1993);
32. Vernon, ed., Re-reading the Constitution: New Narratives in the Political History of England's Long Nineteenth Century (Cambridge, 1996).
33. As argued by Bonnie Smith, The Gender of History: Men, Women, and Historical Practice (Cambridge, Mass., 1998), the historical narratives linked to nation building were deeply gendered, in ways that marginalized not only women but also particular subjects and methods associated with them, such as the dismissal of local history as "particular" rather than "general," the realm of "amateurs" rather than "professionals." All these insights are finding their way into a new legal and political history of the United States.
34. See, for instance, Meg Jacobs, William J. Novak, and Julian E. Zelizer, eds., The Democratic Experiment: New Directions in American Political History (Princeton, N.J., 2003);
35. Jeffrey L. Pasley, Andrew W. Robertson, and David Waldstreicher, eds., Beyond the Founders: New Approaches to the Political History of the Early American Republic (Chapel Hill, N.C., 2004).
36. For analyses that emphasize an approach to political action that depends neither on formal political participation nor on the rights necessary to claim access to the formal political process, see Elsa Barkley Brown, "Negotiating and Transforming the Public Sphere: African American Political Life in the Transition from Slavery to Freedom," Public Culture 1 (Fall 1994): 107-126;
37. Robin D. G. Kelly, "'We Are Not What We Seem': Rethinking Black Working-Class Opposition in the Jim Crow South," Journal of American History 80 (June 1993): 75-112;
38. Glenda Elizabeth Gilmore, Gender and Jim Crow; Women and the Politics of White Supremacy in North Carolina, 1896-1920 (Chapel Hill, N.C., 1990).
39. Much of the post-emancipation literature critiques liberal notions of citizenship, arguing that former slaves were unfamiliar with the concept and suggesting the presence of alternatives to that model: Berlin et al., The Destruction of Slavery;
40. Fields, Slavery and Freedom on the Middle Ground;
41. Eric Foner, Nothing but Freedom: Emancipation and Its Legacy (Baton Rouge, La., 1983);
42. Thavolia Glymph, ed., Essays on the Postbellum Southern Economy (College Station, Tex., 1985);
43. Thomas D. Holt, The Problem of Freedom: Race, Labor, and Politics in Jamaica and Britain (Baltimore, Md., 1992);
44. Saville, The Work of Reconstruction.
45. This article is based on legal records and a range of other sources from North Carolina and South Carolina, at both the local and state levels, 1787 to 1840. Materials from the local level are from Orange, Granville, and Chowan counties in North Carolina and Kershaw, Anderson-Pendleton, and Spartanburg districts in South Carolina. The research includes extensive runs of court documents from those areas. Unlike sampling, which abstracts cases from context, this intensive approach reveals information that is essential in understanding the underlying conflicts and their resolutions. Such an approach also allows insight into the ways that people defined law, on the ground, in the years following the Revolution. That perspective is particularly important because so many areas of law were left to local discretion in this period. The research then extends outward to other counties to include divorce, apprenticeship, poor-house, and church records. At the state level, the materials cover statutes, appellate decisions, and various published legal sources; state government documents such as governors' correspondence, legislative committee reports, pardons, and petitions; newspapers; and the diaries and letter collections of various leaders in state law and politics. Although the article focuses on particular examples from these source groups, the analysis is representative of larger patterns within the research more generally.
46. Laura F. Edwards, "Enslaved Women and the Law: The Paradoxes of Subordination in the Post-Revolutionary Carolinas," Slavery & Abolition 26 (August 2005): 305-323.
47. The trend embraced a unique blend of Revolutionary ideology, the Anglo-American legal tradition, and the politics of the 1760s Regulator Movement. For these points, see Lars C. Golumbic, "Who Shall Dictate the Law? Political Wrangling between 'Whig' Lawyers and Backcountry Farmers in Revolutionary Era North Carolina," North Carolina Historical Review 72 (January 1996): 56-82;
48. Rachel N. Klein, Unification of a Slave State: The Rise of the Planter Class in the South Carolina Backcountry, 1760-1808 (Chapel Hill, N.C., 1990);
49. Walter F. Pratt, Jr., "The Struggle for Judicial Independence in Antebellum North Carolina: The Story of Two Judges," Law and History Review 4 (1986): 129-159;
50. James P. Whittenburg, "Planters, Merchants, and Lawyers: Social Change and the Origins of the North Carolina Regulation," William and Mary Quarterly 34 (April 1977): 215-238.
51. In North Carolina, localism persisted into the 1830s; see William J. Adams, "Evolution of Law in North Carolina," North Carolina Law Review 2 (1923-1924): 133-145;
52. Atwell Campbell McIntosh, "The Jurisdiction of the North Carolina Supreme Court," North Carolina Law Review 5 (1926-1927): 5-29;
53. Walter Parker Stacy, "Brief Review of the Supreme Court of North Carolina," North Carolina Law Review 4 (1925-1926): 115-117;
54. George Stevenson, "Higher Court Records," in Helen F. M. Leary, ed., North Carolina Research: Genealogy and Local History (Raleigh, N.C., 1996), 331-344.
55. The situation is more complicated and uneven in South Carolina, where legislators made more radical changes in the system more often. Despite the trend toward greater centralization and systematization over time, localism also persisted there; see Lacy K. Ford, Jr., Origins of Southern Radicalism: The South Carolina Upcountry, 1800-1860 (New York, 1988);
56. Klein, Unification of a Slave State, 109-237;
57. Donald Senese, "Building the Pyramid: The Growth and Development of the State Courts System of Antebellum South Carolina, 1800-1860," South Carolina Law Review 24 (1972): 357-389.
58. The frequency and the dramatic nature of such changes are apparent in the revised statute collection, a project begun in the 1830s: Thomas Cooper and David J. McCord, eds., Statutes of South Carolina, 22 vols. (Columbia, S.C., 1836-1898), 7: 290-300.
59. For similar trends in Virginia, see F. Thornton Miller, Juries and Judges versus the Law: Virginia's Provincial Legal Perspective, 1783-1829 (Charlottesville, Va., 1994);
60. Christopher M. Curtis, "Jefferson's Chosen People: Legal and Political Conceptions of the Freehold in the Old Dominion from Revolution to Reform" (Ph.D. diss., Emory University, 2002).
61. Until recently, the historiographical presumption has been that southern states lagged behind in strong, centralized governing institutions. But recent scholarship has suggested that they were not as undeveloped as previously thought; see Peter Bardaglio, Reconstructing the Household: Families, Sex, and the Law in the Nineteenth-Century South (Chapel Hill, N.C., 1995);
62. Paul D. Escott, Many Excellent People: Power and Privilege in North Carolina, 1850-1900 (Chapel Hill, N.C., 1985).
63. New trends in legal and political history have emphasized the importance of localism throughout the United States, suggesting that the South was not so distinctive; see Joanne B. Freeman, Affairs of Honor: National Politics in the New Republic (New Haven, Conn., 2001);
64. Jacobs, Novak, and Zelizer, The Democratic Experiment;
65. William J. Novak, The People's Welfare: Law and Regulation in Nineteenth-Century America (Chapel Hill, N.C., 1998).
66. The following names are familiar to southern historians, because these men authored the publications and archival collections that they now use: James Iredell, Sr., John Haywood, Thomas Ruffin, William Gaston, and David Swain of North Carolina; William Loughton Smith, John Faucheraud Grirnké, Thomas Cooper, Langdon Cheves, David J. McCord, Henry William DeSaussure, and John Belton O'Neall of South Carolina. Many of these men were educated in the Northeast, either at colleges such as Princeton or at law schools there. A few were educated in England, at the Inns of Court. But even those who trained in their own states had ties beyond the region, through their business, social, or political connections. What united them was an intellectual stance, bounded by basic assumptions about law and the legal system. They all tended to see law in scientific terms, as an internally consistent set of universally applicable principles, although they often disagreed bitterly on the specifics of those principles. They also favored a hierarchical institutional structure, with authority located in trained professionals at the top of the structure to ensure uniformity, although many still thought that the system should be flexible enough to allow room to achieve justice in particular circumstances at the lower levels, The power of the judiciary relative to the legislature divided reformers throughout the period, particularly at the height of partisan conflict between Federalists and Jeffersonian Republicans before the War of 1812 and during the nullification crisis in South Carolina. So did the question of states' rights, specifically the authority of southern states relative to the nation. Despite these differences, however, reformers as a group tended to support the creation of a clearly defined, definite body of state law, enforced by some institution - usually a strong appellate court - at the apex of the judicial pyramid. That body would decide points of law in decisions that would be enforced by lower levels of the system, which fell out in orderly layers beneath, descending from district or superior courts to individual magistrates in local neighborhoods, with each level subordinate to the one above. Reformers had such confidence in this vision of the legal system that they described it in normative terms: since there was no other option, the system evolved naturally - if somewhat haltingly and fitfully - in this direction.
67. See n. 9 above.
68. For the overlap between law and politics in this period, see Novak, The People's Welfare.
69. Many districts and counties had neither courthouses nor other public buildings, such as jails, in the first decades of their existence. Courts met in whatever available buildings were large enough. If there were courthouses, they were modest structures initially, replaced later by more imposing buildings in the wave of courthouse construction that took place in the last decades of the antebellum period. John Faucheraud Grirnké noted the lack of courthouses in South Carolina, as new districts were being formed: J. F. Grirnké, "Rough Draft of Address on the European Situation and Fear of Slave Revolt Due to French Intervention," 11/172/33, Grirnké Family Papers, 1761-1866 (1040.00), South Carolina Historical Society [hereafter SCHS]. Also see William Drayton, "Remarks in a Tour through the Back Country of the State of South Carolina," 1784-1789 (34/630), SCHS, 41-52, which include notes on his trip through the northern circuit courts as a judge in 1789. Even when there were courthouses, they were not always in the best condition, and grand juries routinely issued demands to the state legislature for funds to remedy the situation: Kershaw County, Grand Jury, April 1805, South Caroliniana Library [hereafter SCL]; Charleston, Grand Jury Presentment, in South Carolina State Gazette, and Timothy and Mason's Daily Advertiser, February 5, 1794;
70. List of Statutes, South Carolina State Gazette, and Timothy and Mason's Daily Advertiser, June 12, 1794. Given the complaints, it is difficult to imagine that such structures were the imposing symbols of state authority that they later came to be, Although colonial-era North Carolina counties, particularly in the eastern part of the state, were likely to have a structure that expressed government authority in its architecture, piedmont and western counties did not erect such public buildings until later in the antebellum period - around the 1830s and 1840s.
71. See Robert Paschal Burns, 100 Courthouses: A Report on North Carolina Judicial Facilities, 2 vols. (Raleigh, N.C., 1978), 1: 243-244, 435.
72. Vernon, Politics and the People, makes a similar point about nineteenth-century England, noting that town halls and other such formal government buildings were linked to changes that formalized the political process.
73. The statute collections and codes of both states summarize the duties of the local courts and local officers. For South Carolina, see Cooper and McCord, The Statutes at Large of South Carolina, vol. 7, which lists significant legislative changes in the structure of the courts from the colonial period to 1840; for relevant changes to law courts between 1785 and 1840, see 211-241, 243-245, 245-246, 247-249, 253-257, 260-270, 283-289, 290-293, 293-300, 300-303, 325-328, 334-337, 339-341.
74. For North Carolina, see the appropriate headings in Laws of the State of North-Carolina, 2 vols. (Raleigh, 1821),
75. and The Revised Statutes of the State of North Carolina, 2 vols. (Raleigh, 1837). The actual dynamics emerge from the local court records. The descriptions of local courts in the following paragraphs are drawn from records in Criminal Action Papers, Granville County, 1790-1840; Criminal Actions Concerning Slaves and Free Persons of Color, Granville County, 1800-1839; Superior Court Minutes, Granville County, 1790-1840; Criminal Action Papers, Orange County, 1787-1808; Superior Court Minutes, Orange County, 1787-1840; all in North Carolina Department of Archives and History [hereafter NCDAH]. County and Intermediate Court, Sessions Docket, Kershaw District; County and Intermediate Court, Common Pleas Docket, Kershaw District; County and Intermediate Court, Indictments, Kershaw District; Magistrates and Freeholders Court, Trial Papers, Kershaw District; Court of General Sessions, Indictments, Kershaw District; Court of General Sessions, Journal, Kershaw District; Court of General Sessions, Coroner's Inquisitions, Kershaw District; all in South Carolina Department of Archives and History [hereafter SCDAH]. Court of Magistrate and Freeholders, Trial Papers, Anderson/Pendleton District; Court of General Sessions, Indictments, Anderson County, 1828-1913; Court of General Sessions, Peace Bonds, Anderson County, 1828-1905; Court of General Sessions, Coroner's Inquisitions, Pendleton District; Court of General Sessions, Coroner's Inquisitions, Anderson District; Magistrates and Freeholders Court, Vagrancy Trials, Anderson District, 1829-1860; County and Intermediate Court, Indictments, Pendleton District, 1790-1799; Court of Common Pleas, Pleadings and Judgments, Pendleton District, 1799-1805; Court of General Sessions, Coroner's Inquisitions, Pendleton District; Court of General Sessions, Indictments, Pendleton District, 1800-1828; Journals of the County and Intermediate Court, Pendleton District, 1790-1793; County and Intermediate Court, Peace Bonds, Pendleton District, 1792-1797; Court of General Sessions, Peace Bonds, Pendleton District, 1807-1827; Magistrates and Freeholders Court, Vagrancy Trials, Pendleton County; all in SCDAH.
76. Raleigh Register, October 25, 1822.
77. These patterns are drawn primarily from Court of General Sessions, Coroner's Inquisitions, Kershaw District; Court of General Sessions, Coroner's Inquisitions, Pendleton District; Court of General Sessions, Coroner's Inquisitions, Anderson District; all in SCDAH. In North Carolina, coroners' reports are not filed separately, but are sometimes attached to murder cases.
78. These patterns are drawn from the records listed in n. 15. The compulsory and brutal qualities of law are obvious in cases with slave defendants. Those inequalities are well documented in the scholarship as well; see, for instance, Edward L. Ayers, Vengeance and Justice: Crime and Punishment in the Nineteenth-Century American South (New York, 1984);
79. Michael Hindus, Prison and Plantation: Crime, Justice and Authority in Massachusetts and South Carolina, 1767-1878 (Chapel Hill, N.C., 1980);
80. Thomas D. Morris, Southern Slavery and the Law, 1619-1860 (Chapel Hill, N.C., 1996);
81. Christopher Waldrep, Roots of Disorder: Race and Criminal Justice in the American South, 1817-80 (Urbana, 111., 1998).
82. For a haunting description of these dynamics, although in the realm between culture and law, see Walter Johnson, Soul by Soul: Life inside the Antebellum Slave Market (Cambridge, Mass., 1999). The literature also underscores the legal disadvantages of poor whites;
83. see Victoria Bynum, Unruly Women: The Politics of Social and Sexual Control in the Old South (Chapel Hill, N.C., 1992);
84. Charles C. Bolton, Poor Whites of the Antebellum South: Tenants and Laborers in Central North Carolina and Northeast Mississippi (Durham, N.C., 1994).
85. Civil suits involving property constituted the bulk of court business in most southern jurisdictions. Ayers estimated that there were about three or four civil cases for every criminal case in a typical southern court; Vengeance and Justice, 32.
86. Also see Ariela Gross, Double Character: Slavery and Mastery in the Antebellum Southern Courtroom (Princeton, N.J., 2000), 23. The preponderance of civil cases, however, actually reflected the relative inaccessibility of property law. Property law had been professionalized before the Revolution, which was one of the North Carolina Regulators' chief complaints; see Whittenburg, "Planters, Merchants, and Lawyers." Lawyers then solidified their hold on economic matters in the decades following the Revolution, given the unsettled state of the economy, the scarcity of cash and credit, and the uncertainty of land titles in the Carolinas. The situation continued into the nineteenth century, largely because of the widespread use of notes, mortgages, and other instruments of debt as the primary means of economic exchange and capital formation. As a result, property law became even more elaborated and professionalized. The place of lawyers in a wide range of economic exchanges is also apparent in their practices, which are composed largely of property matters; see, for instance, Letter Book, William Gaston Papers, #272, box 7; Cameron Family Papers, #133, subseries 1.2, boxes 4-28 (business-related correspondence); both in the Southern Historical Collection [hereafter SHC].
87. Robert W. Gordon, "Critical Legal Histories," Stanford Law Review 36 (January 1984): 57-125.
88. For the customary nature of criminal law as well as its professionalization in the early nineteenth century, also see Lawrence M. Friedman, A History of American Law, 2nd ed. (New York, 1985), 280-294;
89. Michael Meranze, Laboratories of Virtue: Punishment, Revolution, and Authority in Philadelphia, 1760-1835 (Chapel Hill, N.C., 1996);
90. Allen Steinberg, The Transformation of Criminal Justice: Philadelphia, 1800-1880 (Chapel Hill, N.C., 1989).
91. This analysis is based on the local court records listed in n. 15. Southerners' embrace of the legal system as a mechanism of social control also echoes Christopher L. Tomlins's emphasis on a broad construction of police power and his characterization of law as a "primary modality of rule" in the early republic; see Tomlins, Law, Labor, and Ideology in the Early American Republic (New York, 1993).
92. Bertram Wyatt-Brown, Southern Honor: Ethics and Behavior in the Old South (New York, 1982), esp. 401.
93. Traditionally, southern historians have tended to link honor to premodern culture and approaches to justice, and thus to posit a conflict between honor and a modern, institutionalized legal system. The same presumptions that emphasize white men's preoccupation with honor also imply African Americans' exclusion from honor and southern law (except as criminal defendants): Ayers, Vengeance and Justice ;
94. Kenneth Greenberg, Honor and Slavery: Lies, Duels, Noses, Masks, Dressing as a Woman, Gifts, Strangers, Humanitarianism, Death, Slave Rebellions, the Proslavery Argument, Baseball, Hunting, and Gambling in the Old South (Princeton, N.J., 1996);
95. Hindus, Prison and Plantation;
96. Peter Kolchin, American Slavery, 1619-1877 (New York, 1993). Scholarship that focuses on the blatant inequalities in slave law does not always deal with African Americans' view of law, but given the nature of the sources, the analyses understandably tend to assume that such inequalities resulted in African Americans' alienation from the system.
97. In addition to the above, see Bardaglio, Reconstructing the Household;
98. Bynum, Unruly Women;
99. Melton McLaurin, Celia: A Slave (Athens, Ga., 1991);
100. Morris, Southern Slavery and the Law;
101. Mark Tushnet, The American Law of Slavery, 1810-1860: Considerations of Humanity and Interest (Princeton, N.J., 1981);
102. Waldrep, Roots of Disorder.
103. For the compatibility of honor and law in the South, see Gross, Double Character.
104. Also see Sharon Block, Rape and Sexual Power in Early America (Chapel Hill, N.C., 2006);
105. Joshua D. Rothman, Notorious in the Neighborhood: Sex and Families across the Color Line in Virginia, 1787-1867 (Chapel Hill, N.C., 2003);
106. Sommerville, Rape and Race. For work that links honor to institutions and practices associated with the modern nation-state, including a legal system that dispenses impersonal forms of justice,
107. see William M. Reddy, The Invisible Code: Honor and Sentiment in Postrevolutionary France, 1814-1848 (Berkeley, Calif., 1997);
108. Freeman, Affairs of Honor.
109. These generalizations are based on the local court records explained in n. 15.
110. These ideas, common in the Christian tradition, were accepted parts of legal culture that were so obvious that they needed no explanation. This analysis also is based on the minutes of about forty-five Evangelical Protestant churches in North Carolina and South Carolina, from the collections at the SCL, SHC, and NCDAH. They include Baptist, Primitive Baptist, Methodist, and Presbyterian churches, although the majority are Baptist and Primitive Baptist. Also see John B. Boles, The Great Revival, 1787-1805: The Origins of the Southern Evangelical Mind (Lexington, Ky., 1972);
111. Donald G. Matthews, Religion in the Old South (Chicago, 1977);
112. Jean E. Friedman, The Enclosed Garden: Women and Community in the Evangelical South, 1830-1900 (Chapel Hill, N.C., 1985);
113. Klein, Unification of a Slave State, 269-302;
114. Ford, Origins of Southern Radicalism, 19-43.
115. For South Carolina, see County and Intermediate Court, Peace Bonds, Pendleton District, 17921797; Court of General Sessions, Peace Bonds, Anderson County, 1828-1905; both in SCDAH. In North Carolina, peace bonds are mixed in with the other court documents: Criminal Action Papers, Orange County; Criminal Action Papers, Granville County; Criminal Actions Concerning Slaves and Free Persons of Color, Granville County; all in NCDAH.
116. North Carolina's John Clary, for instance, was treated to a pointed visit from the extended family of the young woman whom he impregnated, an action that many historians would designate as "extralegal." Although Clary prosecuted the mob and they were convicted for riot, the entire group was later pardoned by the governor. The pardon owed in part to the nature of Clary's offense. It also reflected the ambiguity between extralegal violence and legally sanctioned policing-and, in a larger sense, the legal system's deep customary roots within local communities. David Stone, Pardon of Nixon, White, Copeland, Copeland, Townsend, and Jordan, October 31, 1809, Governor's Letter Book, vol. 17, 115, NCDAH. The point is similar to, but not the same as, the one made by Wyatt-Brown, Southern Honor, 366, that extralegal sanctions replaced legal punishments within the southern criminal justice system without undermining the integrity of law. In contrast to Wyatt-Brown, I am arguing that the distinction between "legal" and "extralegal" was less meaningful, because of the institutional structures of law.
117. The process of private detection was similar to that described by Cynthia Herrup, The Common Peace: Participation and the Criminal Law in Seventeenth-Century England (New York, 1987), 67-92.
118. Also see Steinberg, The Transformation of Criminal Justice, who describes the process of private prosecution and community-based policing in Philadelphia in the early republic. These generalizations about the process are based on the local court records explained in n. 15.
119. Inquest of Israel, slave of James Gordon, 1845, Court of General Session, Coroner's Inquisitions, Anderson County, SCDAH.
120. Magistrates and grand juries both identified community problems that required legal action, based on "information" that had been given to them. An "information" was one of the ways to establish a criminal charge in British law. In its strict sense, "information" was the charge brought by one individual against another. That information was then investigated by the magistrate, who determined whether the case would go forward. In practice, in the post-Revolutionary Carolinas, " information" acquired a broader definition, encompassing all the evidence given at the investigatory hearing. See Arthur P. Scott, Criminal Law in Colonial Virginia (Chicago, 1930), 72-75.
121. For a brilliant analysis of the way that slaves' words entered court in civil cases despite restrictions on their testimony, see Gross, Double Character.
122. These observations are based on local court records explained in n. 15. For similar dynamics, see Block, Rape and Race ;
123. Rothman, Notorious in the Neighborhood.
124. The process also was similar to the kind of social witnessing that slaves used to claim property that Penningroth describes in The Claims of Kinfolk, 91-109.
125. The term "report" figured prominently in church hearings, suggesting the influence of legal culture on religious practice: members reported on themselves and others; church members investigated those reports to find out whether they were true or false; they also charged people with false reports or false swearing. For particularly illustrative examples, see New Hope Baptist Church, Purleer, Church Minutes, 1830-1930, Wilkes County, North Carolina, Cane Creek Baptist Church, Minutes and Membership Roll, 1829-1941, Orange County, North Carolina; Brassfield Baptist Church, History and Minutes, 1823-1948, Creedmore, Granville County, North Carolina; Wheeley's Primitive Baptist Church, Roxboro, Session Minutes and Roll Book, 1790-1898, Person County, North Carolina; all in NCDAH. First Baptist Church, Barnwell County, Minutes; Cashaway Baptist Church, Record Book, Darlington [Craven] County; Methodist Church, Darlington County and Florence County, Darlington Circuit; Big Creek Baptist Church, Williamston, Anderson County, Records; Methodist Church, Florence County, Lynch's Creek Circuit; Thomas Memorial Baptist Church, Marlboro County, Bennettsville, Church Book; all in SCL.
126. The scholarship on the nineteenth-century South, in particular, has emphasized the importance of local custom in the legal process. See, in particular, Ariela Gross, "Beyond Black and White: Cultural Approaches to Race and Slavery," Columbia Law Review 101 (2001): 640-689, 640.
127. Also see Block, Rape and Sexual Power;
128. Gross, Double Character;
129. Johnson, Soul by Soul;
130. Penningroth, The Claims of Kinfolk;
131. Rothman, Notorious in the Neighborhood;
132. Sommerville, Rape and Race. As other legal historians have emphasized, custom continued to play a central role in local venues;
133. see Michael Willrich, City of Courts: Socializing Justice in Progressive Era Chicago (New York, 2003). The implications for law's content, however, were different in the late nineteenth and twentieth centuries, because local courts occupied a different place within the institutional structures of law.
134. State v. Elley, 1807, #6, Magistrates and Freeholders Court, Trial Papers, Kershaw District, SCDAH.
135. For other, similar cases in which whites prosecuted slaves for spreading rumors, see State v. Peter and Demce, 1815-1816;
136. State v. Nowell, 1810-1812;
137. both in Criminal Actions Concerning Slaves and Free Persons of Color, Granville County, NCDAH. State v. Patt, 1825, case #14, reel 2916;
138. State v. Fed, 1828, case #37, reel 2916;
139. State v. Cain, 1835, case #75, reel 2916;
140. State v. Toney, 1838, case #97, reel 2916;
141. State v. Spencer, 1839, #106, reel 2916;
142. State v. Fanny and Richmond, 1839, case #109, reel 2916;
143. State v. Margret, 1840, case #115, reel 2916;
144. all in Trial Papers, Court of Magistrates and Freeholders, Anderson/Pendleton District, SCDAH. State v. Titus, 1833, case #8, reel 2920;
145. State v. Chang, 1835, case #13, reel 2920;
146. State v. Jacob, 1835, case #15, reel 2920;
147. State v. Tom, 1841, case #35, reel 2920. Also revealing are William Valentine's fears, after a fight with his landlady, about how she will publicize the incident and what that will do to his reputation; see William D. Valentine Diaries, #2148, SHC, June 4, 1842.
148. A South Carolina slave named Sylva, for instance, managed to mobilize local gossip networks to implicate her overseer in her own death. See Inquest on
149. State v. Tom, 1824; both in Criminal Action Papers, Chowan County, NCDAH. Many scholars have noted the acceptance of rape and the idea of the sexual accessibility of black women among whites. Also see Edwards, "Enslaved Women and the Law."
150. Diaries of David Schenck and William D. Valentine, both of North Carolina, contain descriptions of trials and courtrooms; see David Schenck Papers, #652, SHC, Diaries, series 1, folder 2, vol. 1, particularly 7-8, 33, 80-82, 137-140, 151. William D. Valentine Diaries, #2148, SHC, April 14, 1837, August 16, 1837, September 21, 1837, March 23, 1838, May 16, 1838, September 21, 1838. The patterns echo those in colonial Virginia described so well by A. G. Roeber, "Authority, Law, and Custom: The Rituals of Court Day in Tidewater Virginia, 1720-1750," William and Mary Quarterly 37 (January 1980): 29-52, although early national and antebellum courts seem to have been less decorous.
151. Also see Gross, Double Character, 22-46;
152. Rhys Isaac, The Transformation of Virginia, 1740-1790 (Chapel Hill, N.C., 1982).
153. For court day as an occasion to exchange gossip and for gossip about court cases and court officials, see John Hill Wheeler to David S. Reid, in Lindley S. Butler, ed., The Papers of David Settle Reid, 2 vols. (Raleigh, N.C., 1993), 1: 207-210, 222-224, 229-230.
154. William Henry Hoyt, ed., The Papers of Archibald D. Murphey, 2 vols. (Raleigh, N.C., 1914), 1:93-95, 168-170.
155. David Schenck Papers, #652, Diaries, series 1, folder 2, vol. 1, 151. Raleigh Register, July 14, 1808, contains a suggestive article regarding the governor's attempts to gauge public opinion through circuit judges and their contact with people and gossip at court. Newspapers also reported on notorious cases in a way that suggested the larger swirl of gossip that surrounded them. Even out-of-state cases, republished in local papers, indicate the way trials functioned as local entertainment.
156. See, for instance, Raleigh Register, July 12, 1810, October 11, 1810, February 22, 1822, April 9, 1824, April 12, 1825, November 12, 1829, April 8, 1830, May 20, 1830, October 7, 1830.
157. Also see State Gazette of South Carolina, March 17, 1791, April 21, 1791, October 3, 1791, November 29, 1792;
158. South Carolina State Gazette, and Timothy and Mason's Daily Advertiser, March 29, 1794;
159. Charleston Courier, December 20, 1822;
160. South Carolina State Gazette and Columbia Advertiser, May 5, 1827, September 27, 1828. William Valentine's evaluations of judges' and lawyers' abilities also suggest the entertainment value of court dynamics; see, for instance, William D. Valentine Diaries, #2148, SHC, August 16, 1837, September 21, 1837, August 18, 1837, May 16, 1838, September 21, 1838, October 29, 1841, September 27, 1845, March 18, 1846, October 12, 1846, March 26, 1847, June 1, 1848, June 6, 1848, December 20, 1848.
161. This analysis is based on about 650 letters and petitions related to pardon requests to North Carolina governors from 1787 through 1845. This correspondence is in two different record groups, Governors' Papers and Governors' Letter Books, vols. 6-36, NCDAH.
162. The concept of credit was crucial to deliberations about who would receive pardons and who would not. External indices of social status - such as gender, race, age, and property - all figured prominently in establishing credit, just as they had for centuries in the legal culture of both England and continental Europe. But they provided only the starting point. What determined any given individual's credit was specific knowledge about that person, disseminated through the exchange of gossip among those who knew him or her. The personal and impersonal aspects of credit worked together, creating a unique balance in each instance. That was why local courts routinely included testimony about the reputations of witnesses, as well as defendants and victims, if their information was crucial to the case. Such character witnesses were believed necessary to establish the reliability of key accounts, a practice that suggests the personal connotations of credit: who someone was, at a very personal level, was essential in evaluating what that person said in court - and determining the implications and consequences of what he or she was judged to have done. See, in particular, Craig Muldrew, The Economy of Obligation: The Culture of Credit and Social Relations in Early Modern England (London, 1998). Credit, then, carried over into the legal evaluation of other kinds of information;
163. see Laura Gowing, Domestic Dangers: Women, Words, and Sex in Early Modern London (Oxford, 1996), 50-52, 232-262;
164. Cynthia B. Herrup, A House in Gross Disorder: Sex, Law, and the 2nd Earl of Castlehaven (New York, 1999).
165. Also see Barbara Shapiro, "Beyond Reasonable Doubt" and "Probable Cause"; Historical Perspectives on the Anglo-American Law of Evidence (Berkeley, Calif., 1991), 6-12, 114-185.
166. This summary draws on the scholarship that uses gender to illuminate the status of women and their relation to government in the early modern period and the age of revolution. See, for instance, Susan Dwyer Amussen, An Ordered Society: Gender and Class in Early Modern England (Oxford, 1988);
167. Kathleen M. Brown, Good Wives, "Nasty Wenches, "and Anxious Patriarchs: Gender, Race, and Power in Colonial Virginia (Chapel Hill, N.C., 1996);
168. Nancy Fraser and Linda Gordon, "A Genealogy of Dependency: Tracing a Keyword of the U.S. Welfare State," Signs 19 (Winter 1994): 309-336;
169. Carol Karlsen, The Devil in the Shape of a Woman: Witchcraft in Colonial New England (New York, 1987);
170. Linda K. Kerber, Women of the Republic: Intellect and Ideology in Revolutionary America (Chapel Hill, N.C., 1980);
171. Joan B. Landes, Women and Public Sphere in the Age of the French Revolution (Ithaca, N. Y., 1988). Also see Edwards, "Enslaved Women and the Law."
172. John Haywood, The Duty and Office of Justices of the Peace, Sheriffs, Coroners, Constables, &c. According to the Laws of the State of North Carolina (Raleigh, N.C., 1808), quote from 191.
173. Haywood's was the standard guide in North Carolina. In South Carolina, one of the most popular guides was John Faucheraud Grirnké, The South Carolina Justice of the Peace (Philadelphia, Pa., 1788),
174. The manuals were usually based on either Michael Dalton, The Countrey Justice,
175. or Richard Burn, The Justice of the Peace, and Parish Officer. They also duplicated earlier colonial guides;
176. see William Simpson, The Practical Justice of the Peace and Parish-Officer, of His Majesty's Province of South-Carolina (Charleston, S.C., 1761). The guidelines in Blackstone were much less detailed;
177. see Sir William Blackstone, Commentaries on the Laws of England, 4 vols, (repr., Chicago, 1979), vol, 3 on private wrongs and vol. 4 on public wrongs.
178. Also see Scott, Criminal Law in Colonial Virginia, which describes procedural elements that continued to guide the process between the Revolution and the Civil War in the Carolinas.
179. The logic was laid out clearly in contemporary justices' manuals, which drew on rules from the earlier British guides. See n. 41 above. Also see Laura F. Edwards, "Law, Domestic Violence, and the Limits of Patriarchal Authority in the Antebellum South," Journal of Southern History 65 (November 1999): 733-770.
180. State v. George, 1826;
181. State v. Tom, 1824;
182. both in Chowan County Criminal Action Papers, NCDAH. These rape cases are just one example of prosecutions at the local level, which seem legally marginal, if not altogether impossible, given the status of the victim and the accused. In the mid-1820s, when charges were filed, North Carolina statutes and case law remained silent as to the criminal status of the rape of an enslaved woman by an enslaved man, although existing elements of slave law militated against such prosecutions. Prosecuting the cases as offenses against the peace bypassed those issues. Morris, Southern Slavery and the Law, 305-307, notes the loopholes in rape laws that allowed for such prosecutions and discusses several cases, including an 1859 Mississippi case in which the Mississippi State Supreme Court overturned a local judge's ruling, which allowed for the trial and conviction of an enslaved man for the rape of an enslaved child under ten years old, on the basis that statute and common law did not apply to slaves; and six Virginia cases, between 1790 and 1833, in which enslaved men were tried for raping free black women. Morris characterizes all the Virginia cases as exceptions and the Mississippi State Supreme Court decision as the rule. Given the changes in the court structure, however, another interpretation would be that local jurisdictions retained the ability to define and prosecute such incidents as rapes until the appellate courts (1) acquired the power to say they could not, and (2) heard cases relating to the matter and, like the Mississippi State Supreme Court, rendered decisions that specifically disallowed prosecution. Within a year from the Mississippi court's decision, the legislature passed a statute that established the rape of any African American female under twelve by an African American man as a crime. Given their assumptions about the structure and logic of the legal system, Morris and other historians concluded that this statute extended new rights. For a discussion of the Mississippi statute,
183. also see Bardaglio, Reconstructing the Household, 67-68. An alternate explanation is that the statute codified local practice and framed it in the language of rights.
184. Sommerville, Rape and Race, 64-68, notes rape cases involving African American females, although she emphasizes the age of the victims and attributes prosecution to social proscriptions that categorized the rape of children as a different, particularly heinous offense.
185. This analysis is based not only on local court records, cited in n. 15, but also on the relationship between those cases and state appellate decisions. The legal implications of local cases were confined to the cases at hand, a situation that reform-minded state lawmakers tried to remedy throughout the period between the Revolution and the Civil War in a number of ways: by abolishing courts of conference, which reviewed problematic cases, offered suggestions, and then returned them to the district courts; by replacing it with an appellate court; by strengthening the appellate court's power to set precedent; and by elevating both appellate decisions and statutes as a single consistent, authoritative body of law that applied throughout the state.
186. Individual requests for laws took up most of the state legislatures' business. Petitioners identified problems that they considered of public import and requested action in the form of new laws. If successful, those requests usually resulted in statutes labeled as "private" acts, which far outnumbered public ones. Private acts ranged as widely as complaints brought to magistrates, and included the incorporation of voluntary organizations, the chartering of businesses, grants of manumission, divorce, legitimization of children, and suspensions of existing laws in particular instances, But the categorization of "private acts" and "public acts" was imposed after the fact, by the lawmakers, the terms of an existing process, or those publishing and organizing the statutes. The terminology was not that of the petitioners. As such, it can be misleading, because it implies a clear dichotomy that did not always exist in practice. In theory, the terms attempted to define the implications of legislation, along the same lines that distinguished private issues from public ones in other areas of law: "private" referred to the scope of enforcement, which applied only to those named, rather than to everyone in the state, as did "public" acts. But the line between private acts and public acts was not always well maintained. Public acts were initiated in the same way as private ones, through local initiative, usually petitions and grand jury presentments. The difference was that the sources of public law usually came through a request authored by a group - rather than an individual - which claimed to represent the interests of a particular area or constituency. Yet many public acts, like private ones, addressed specific, highly localized problems. The Raleigh Register, which provided day-by-day updates on the Assembly's business, started separating out "private acts" from "public acts" only around 1809. Until then, it mixed them together, even when it listed the new laws published at the end of each legislative session. It is easy to see why the Register did not bother to make the distinction, considering the nature of so many "public acts." Whether labeled public or private, statutes resulted from a process similar to that in the localized legal system, Individuals or small groups requested outside legal intervention in personal or highly localized matters, by linking them to the maintenance of the peace.
187. Quote from Curtis Winget, Petition for Divorce, 1830, General Assembly Records, SCDAH. Other petitions for divorce or arrangements that approximated divorce came in infrequently but optimistically: Rachel Teakle, Petition for Divorce, 1802; Henry Gable and Nancy Gable, Petition for Divorce, 1810; Richard Hembree Hughes, Petition for Divorce, 1818; Mary Wilson, Petition for Divorce, 1821; Elizabeth Hamilton, Petition for Annulment and Exoneration from Her Husband's Debts, 1813; William Chick, Petition for Divorce, 1821; Thomas Miller, Petition for Divorce, 1841; Wilson Bartlett, Petition for Divorce, 1844; Marmaduke James, Petition for Divorce, 1847; all in General Assembly Records, SCDAH. Those same expectations explain why the North Carolina legislature still fielded divorce petitions long after the state moved jurisdiction over such matters to the superior courts.
188. Nineteenth-century historians once assumed that "public" and "private" were separate realms, configured in a hierarchical arrangement, much like that posited by liberal political theorists, notably John Locke: the "private" realm of the household was distinct from and subordinate to the "public" world of politics and commerce. The influence was apparent within southern history, where the traditional focus on political history and the men who figured in law and party politics focused on the "public" side of the equation. Later work on social history moved in the other direction, back toward the "private" sphere, although broadly conceived to include matters such as economic production, labor, and the slave system as well as the daily lives of all those enmeshed in that system, particularly slaves and their white mistresses. Where earlier scholarship on the South accepted that distinction as a given, later work in the field has used the analytical lens of gender to explain its presence, the resulting dynamics, and their wider implications. These historians construe private and public as products of politics and culture rather than expressions of nature, distinct spheres, or actual physical space. As a result, they have focused on the ideological assumptions that underlay the concepts, how they changed, and how they were used. In the context of the slave South, historians have linked the dynamics of private and public to the concept of dependency, which incorporates race and class as well as gender. Yet the scholarship still tends to assume that the legal system in the slave South treated all problems of domestic dependents as "private" and thereby either excluded them or did its best to ignore or limit them when they did appear, a situation that did not change until after Reconstruction. See, in particular, Bardaglio, Reconstructing the Household.
189. Also see Bercaw, Gendered Freedoms;
190. Brown, Good Wives, "Nasty Wenches, "and Anxious Patriarchs;
191. Bynum, Unruly Women;
192. Dailey, Before Jim Crow;
193. Edwards, Gendered Strife and Confusion;
194. Elizabeth Fox-Genovese, Within the Plantation Household: Women in the Old South (Chapel Hill, N.C., 1988);
195. Frankel, Freedom's Women;
196. Gilmore, Gender and Jim Crow;
197. Stephanie McCurry, Masters of Small Worlds: Yeoman Households, Gender Relations, and the Political Culture of the Antebellum South Carolina Low Country (New York, 1995);
198. Schwalm, A Hard Fight for We;
199. Stanley, From Bondage to Contract;
200. Lee Ann Whites, The Civil War as a Crisis in Gender: Augusta, Georgia, 1860-1890 (Athens, Ga., 1992).
201. Gross, "Beyond Black and White." Also see Block, Rape and Sexual Power;
202. Stephanie Cole, "Keeping the Peace: Domestic Assault and Private Prosecution in Antebellum Baltimore," in Christine Daniels and Michael V. Kennedy, eds., Over the Threshold: Intimate Violence in Early America (New York, 1999), 148-169;
203. Gross, Double Character; Johnson, Soul by Soul;
204. Penningroth, The Claims of Kinfolk;
205. Rothman, Notorious in the Neighborhood;
206. Sommerville, Rape and Race.
207. Berlin et al., The Black Military Experience ;
208. Berlin et al., The Destruction of Slavery;
209. Ira Berlin, Thavolia Glymph, Steven F. Miller, Joseph P. Reidy, Leslie S. Rowland, and Julie Saville, eds., The Wartime Genesis of Free Labor: The Lower South (New York, 1991).
210. Also see Bercaw, Gendered Freedoms;
211. Edwards, Gendered Strife and Confusion;
212. Fields, Slavery and Freedom on the Middle Ground;
213. Foner, Nothing but Freedom;
214. Hahn, A Nation under Our Feet;
215. Thomas C. Holt, Black over White: Negro Political Leadership in South Carolina during Reconstruction (Urbana, 111, 1977);
216. Rodrigue, Reconstruction in the Cane Fields;
217. Saville, The Work of Reconstruction;
218. Schwalm, A Hard Fight for We.
219. Berlin et al., "Afro-American Families in the Transition from Slavery to Freedom"; Bercaw, Gendered Freedoms;
220. Victoria Bynum, "Reshaping the Bonds of Womanhood: Divorce in Reconstruction North Carolina," in Catherine Clinton and Nina Silber, eds., Divided Houses: Gender and the Civil War (New York, 1992), 320-333;
221. Edwards, Gendered Strife and Confusion; Frankel, Freedom's Women;
222. Susan Eva O'Donovan, "Transforming Work: Slavery, Free Labor, and the Household in Southwest Georgia, 1850-1880" (Ph.D. diss., University of California, San Diego, 1997);
223. Elizabeth Regosin, Freedom's Promise: Ex-Slave Families and Citizenship in the Age of Emancipation (Charlottesville, Va., 2002);
224. Rosen, "'Not That Sort of Women'";
225. Sommerville, Rape and Race, 147-175;
226. Schwalm, A Hard Fight for We, 147-268;
227. Karin L. Zipf, Labor of Innocents: Forced Apprenticeship in North Carolina, 1715-1919 (Baton Rouge, La., 2005).
228. For white women, see Drew Faust, Mothers of Invention: Women of the Slaveholding South in the American Civil War (Chapel Hill, N.C., 1996);
229. George C. Rable, Civil Wars: Women and the Crisis of Southern Nationalism (Urbana, Ili., 1989);
230. Edwards, "Law, Domestic Violence, and the Limits of Patriarchal Authority."
231. Accounts focusing on the development of the state's courts usually note this point. See, for instance, Adams, "Evolution of Law in North Carolina"; McIntosh, "The Jurisdiction of the North Carolina Supreme Court"; Orth, "North Carolina Constitutional History"; Senese, "Building the Judicial Pyramid."